Date: 20010906

Docket: 1999-2085-GST-I

BETWEEN:

510628 ONTARIO LIMITED o/a ROSSET LANDSCAPING,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons For Taxation

Tanasychuk, T.O., T.C.C.

[1]            This taxation came on for hearing on May 15, 2001, by means of a telephone conference call. It follows a Judgment of the Honourable Judge Bowman dated July 21, 2000 wherein the Appellant's liability for Goods and Services Tax was reduced by $1,452.47 and costs, if any, to the extent allowed by the tariff, were awarded.

[2]            At the time fixed for the taxation of costs, a telephone call was placed to Mr. Denis Michel, counsel for the Appellant. Mr. Michel was not in his office. The matter was adjourned for thirty minutes, at which time a further attempt to contact Mr. Michel was made, without success.

[3]            On January 25, 2001, the Court was advised that Mr. Michel had been retained to represent the Appellant with respect to the issue of costs. Prior to fixing a date for the taxation of costs, attempts were made to contact Mr. Michel, to confirm his availability. Mr. Michel did not respond to the messages left for him. I am satisfied that Mr. Michel, counsel for the Appellant, was properly served with the Notice of Appointment for this taxation of costs. The Court file included a confirmation of delivery notice from Canada Post. The taxation of costs proceeded, without the participation of the Appellant's counsel. Ms. Cathy Chalifour represented the Respondent.

[4]            The Bill of Costs as submitted by the Appellant is as follows:

A.             FOR SERVICES OF COUNSEL I CLAIM THE FOLLOWING:

A) Preparation of Notice of Appeal                                                   $ 150.00

B) Pre-Trial Conference                                                                                           75.00

C) Preparation of Hearing                                                                    200.00

D) Conducting the Hearing, including expert

witness, 2 half days                                                                                            600.00

B.             For Witness' fees I claim the following:

One witness                                                                                                            50.00

D.             Other disbursements:

A) 28 copies at $2.00                                                                                               56.00

B) Financial statements                                                                                        200.00

C) Filing Fee                                                                                                           100.00

D) Making up and forwarding of documents                   605.00

                                                                                                                                                                $1,496.00

                                                                                                                GST                                            104.72

                                                                                                                TOTAL                   $1,600.72

[5]            Counsel for the Respondent reviewed each item claimed by the Appellant on the Bill of Costs. Her submissions concerning each item are set out below.

[6]            Ms. Chalifour stated that the claim for counsel fees totalling $1,025.00 should be disallowed. Mr. Bop Topp, who filed the notice of appeal and represented the Appellant at hearing, was an accountant and not a lawyer. To verify this assertion, she made inquiries of the Law Society of Upper Canada, to determine whether Mr. Topp was a member of the Ontario Bar and it was confirmed that he was not. Ms. Chalifour referred to the case of The Queen v. Munro, 98 D.T.C. 6443 (F.C.A.) to support her position that only fees relating to "services of counsel" are recoverable.

[7]            Ms. Chalifour disputed the Appellant's entitlement to the $50.00 claimed for the witness fee. While a Mr. Georges Rosset did give evidence on the Appellant's behalf at hearing, there was no proof provided that the $50.00 witness fee was actually paid

[8]            The next item reviewed was a claim for 28 copies at the rate of $2.00 per page. Ms. Chalifour acknowledged that copies of documents were produced and filed as exhibits at hearing. As such, she stated that she would consent to the allowance of the claim for 28 copies, but not at the rate of $2.00 per page. She suggested that the rate of $.20 per page was reasonable, which is the amount that may be allowed under Tariff B of the Tax Court of Canada Rules (General Procedure), in the absence of proof to the contrary.

[9]            The Bill of Costs includes a claim for financial statements in the amount of $200.00. Ms. Chalifour stated that there were no financial statements filed at hearing. In addition, given that the appeal related to the issue of whether an automobile was purchased for use primarily in the Appellant's business, financial statements were not required for the conduct of the hearing. In addition, there had been no documents produced to show that the expense was incurred.

[10]          Upon filing the notice of appeal, a fee of $100.00 was paid. The Bill of Costs includes a claim for this $100.00 fee. Ms. Chalifour stated that this amount is not recoverable from the Respondent. She stated that the filing fee is reimbursed by the Tax Court of Canada and that the Appellant should contact the Court for reimbursement of the fee.

[11]          The last disbursement claimed of $65.00 is noted as a claim for making up and forwarding documents. Ms. Chalifour stated that she had not been provided with an explanation as to what documents were prepared and where they were forwarded. In the absence of such details and an explanation as to how the documents were essential to the appeal, no amount should be allowed.

[12]          GST of $104.72 has been claimed. Ms. Chalifour stated that the Appellant's entitlement to recover GST would follow the Rules regarding the recovery of GST paid or payable.

[13]          To summarize Ms. Chalifour's submissions, she is prepared to consent to the amount of $5.60 on account of photocopies. It is her position that the Appellant is not entitled to any of the other amounts claimed.

[14]          I will deal with the claim for counsel fees first. Rule 11 sets out that certain fees may be allowed for the services of counsel. Rules 2 defines counsel as:

every person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces;

Mr. Topp does not fall within the definition of counsel. As such, no amount is recoverable on account of fees under Rule 11. I will accordingly tax off the full amount claimed for counsel fees in the amount of $1,025.00.

[15]          The first disbursement of $50.00 is allegedly on account of a fee paid to a witness. While there is no doubt that one witness, other than the Appellant, did testify at the hearing, there was no proof that a $50.00 witness fee was actually paid. I am not satisfied that the disbursement was incurred. Accordingly, I will tax off the amount of $50.00

[16]          The next disbursement is for photocopies in the amount of $56.00 The document produced to support this claim consisted of a hand-written receipt issued by 630548 Ontario Limited to the Appellant in the total amount of $121.00 with the following notation:

photocopies ($56.00) and complete & deliver documents ($65.00)

This receipt did not contain a notation of the number of copies made, the cost per copy and a description of what was copied. On its face, I find that this receipt is not sufficiently detailed to allow the claim of $56.00 for photocopies. In recognition of the fact that exhibits were filed at hearing and in view of Ms. Chalifour's comments as set out above, I will allow the sum of $5.60 for photocopies, calculated on the basis of 28 copies at the rate of $.20 per page.

[17]          A receipt did not substantiate the claim for financial statements of $200.00. I am not satisfied that the Appellant incurred a $200.00 disbursement for the preparation of financial statements. Even if such disbursement was incurred, I do not believe that the preparation of financial statements was required for the conduct of the appeal. I will tax off the sum of $200.00.

[18]          The reimbursement of the $100.00 filing fee is not recoverable from the Respondent on a taxation of costs. Pursuant to s. 18.3009(1)(a) of the Tax Court of Canada Act, the $100.00 fee paid was returned to the Appellant. Accordingly, I will tax off the sum of $100.00.

[19]          The claim for $65.00 relates to the making up and forwarding of documents. Again, the receipt produced to substantiate this claim did not identify what documents were prepared, for what purpose and whether they were forwarded. In the case of Leung et al v. M.N.R. 93 D.T.C., at page 789, the Honourable Judge Kempo stated:

"The Respondent is entitled to know, within a reasonable certainty, what, and why, and at what rate it is called upon to pay the appellant's out of pocket expenses incurred as a result of its successful outcome of the trial."

The supporting receipt falls short of providing a reasonable explanation as to what documents were produced, for what purpose and where they were sent. Accordingly, I will tax off the amount of $65.00

[20]          The last item claimed was for GST in the amount of $104.72. The only amount on which GST could be allowed is the $5.60, which I have allowed for photocopies. In determining whether GST is to be allowed, one must refer to Rule 11(4), as follows:

"There may be allowed all services, sales, use or consumption taxes and other like taxes paid or payable on any counsel fees and disbursements allowed if it is established that such taxes have been paid or are payable and are not otherwise reimbursed or reimbursable in any manner whatever, including, without restriction, by means of claims for input tax credits in respect of such taxes."

It has not been established that GST was paid or is payable on the $5.60, which I have allowed for photocopies. The amount claimed for GST of $104.72, is accordingly taxed off.

[21]          The Bill of Costs of the Appellant in the amount of $1,600.72 is taxed and $5.60 is allowed. A certificate will be issued.

Dated at Toronto, Ontario, the 6th day of September 2001.

   "B.G. Tanasychuk"        

Taxing Officer